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2018 DIGILAW 2531 (JHR)

Nagendra Das son of Feku Das v. Chetan Das

2018-11-22

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : Heard learned counsel for the appellants. No one appears on behalf of the respondents in spite of repeated calls. 2. The appellants have preferred this appeal being aggrieved by the judgment and decree dated 23.12.1989 passed by the learned Additional Judicial Commissioner, Ranchi, in Title Appeal No.43 of 1988/13 of 1988 whereby and where under the learned Additional Judicial Commissioner has allowed the appeal on contest with cost and dismissed the suit for partition filed by the plaintiffs-appellants. 3. The brief fact of the case is that the parties to the suit are descendants of common ancestor of Bhola Das. Bhola Das had three sons namely Jagmohan Das, Manmohan Das and Sadanand Das. The plaintiffs are the descendants of Manmohan Das and Sadanand Das whereas the defendants are the descendants of Jagmohan Das. It is the case of the plaintiffs that the suit property has been granted in permanent heritable rights to Bhola Das. After the death of Bhola Das, the same remained in possession of the said three sons of Bhola Das as coparcenary property. The grant was not subject to any condition and no condition ran with the propriety rights of joint enjoyment of the properties in suit by the parties. However, bhog, niyog and puja were done by the parties to the deity recorded in the record of rights. There is unity of title and community of interest in matters relating to ownership and possession of the suit properties by all the parties to the suit. The family members of the parties are in separate possession of some of the suit properties for the sake of convenience but there has been no partition by metes and bounds. The plaintiffs claimed 2/3rd share in the suit property as the plaintiffs’ demand for partition was refused by the defendants. Hence, the plaintiffs filed the suit for partition. 4. The case of the defendants on the other hand, in brief is that the properties in suit had never been granted in permanent heritable rights to Bhola Das. The suit properties were part and parcel of Siri Estate of the ancestors of Lal Raghunath Sahdeo and they had made an endowment of the said two villages in favour of the family deity ‘Baikunth Bihari Thakur Jee’ much before the cadastral survey operation. The ancestor of the parties to the suit namely Gulab Das was first appointed as ‘Sebait’. The suit properties were part and parcel of Siri Estate of the ancestors of Lal Raghunath Sahdeo and they had made an endowment of the said two villages in favour of the family deity ‘Baikunth Bihari Thakur Jee’ much before the cadastral survey operation. The ancestor of the parties to the suit namely Gulab Das was first appointed as ‘Sebait’. After his death, Feku Das was appointed as ‘Sebait’ of the deity who continued to perform Puja of the deity and used to manage Debottar properties with the consent of the landlord of the said Siri Estate and accordingly he was recorded as ‘Sebait’ of the deity ownership of the suit land. After the death of Feku Das, Bhola Das was appointed as the ‘Sebait’ and after his death Jagmohan Das was appointed as the ‘Sebait’ of the deity. It was specifically pleaded by the defendants that the suit property being the Debottar property is not available to partition because the suit property is not the coparcenary property of the parties to the suit. 5. The learned trial court decreed the suit of the plaintiffs by holding that the plaintiffs are entitled for 2/3rd share of the suit properties. Being aggrieved by the judgment and decree passed by the trial court, the defendants filed an appeal which was registered as Title Appeal No.43 of 1988 and 13 of 1988 in the court of Judicial Commissioner, Ranchi and ultimately the same was heard and disposed of by the Additional Judicial Commissioner, Ranchi by the impugned judgment and decree. 6. The learned first appellate court made an independent appreciation of the evidence in the record and after taking into consideration the entries made in the document filed by the parties as well as the admission of the witnesses of the plaintiffs that the suit land is a Debottar property being the ‘Seibat’ of Baikunth Bihari Thakur Jee held that the suit property being not coparcenary property of the parties to the suit, the suit property was never the personal property of the parties to the suit rather the suit property is Debottar in character, hence, the same cannot be a partitioned between the parties to the suit and allowed the appeal on contest while dismissing the suit for partition filed by the plaintiffs. 7. 7. At the time of admission of this second appeal, vide order dated 17.09.1990, the following substantial question of law was framed:- ‘Whether in the absence of any instrument of dedication, mere use of the word Debottar in the two survey records of rights would be conclusive for deciding the nature of the property in question?’ 8. Mr. Vishal Kumar Tiwary, learned counsel for the appellants fairly submits that the existence of any document is not necessary to prove a property to be ‘Debottar’, but the absence of a document throws a heavy onus upon the party who sets up dedication to prove that a property has been inalienably conferred upon an idol. In support of his contention, learned counsel for the appellants relied upon the judgment of Hon’ble Patna High Court in the case of Sunderlal Goswami and Another versus Jogeshwar Prasad Singh and Others reported in AIR 1975 Patna 246 wherein the Hon’ble Patna High Court has held as under in paragraph-7:- 7. “But, that technicality apart, coming to the merits of the case, as already stated, it is a case of dedication based on lost grant. There is no document of title to be construed; no terms of the grant to be interpreted; nor any inference to be drawn from any Sanad. But, as stated by Dr. Bijan Kumar Mukherjea in his Hindu Law of Religious and Charitable Trust, at page 172 (1952 Edition), the existence of any document is not necessary to prove a Debutter, "but the absence of a document throws a heavy onus upon the party who sets up dedication to prove that a property has been inalienably conferred upon an idol". In the absence of any grant, then, can it be justifiably said that the mere use of the term 'Shivottar' at some places in the survey papers would change the character of a secular property into that of a property dedicated absolutely to a deity ? The fact that a property ordinarily described as 'Shivottar' is a piece of evidence in favour of dedication no doubt, but it has been repeatedly held that the mere use of such a term is not of a conclusive nature for a determination of the question whether a property has lost its secular character by complete dedication to God. To refer to a small passage from Dr. Mukherjea's book aforesaid, at P. 173. To refer to a small passage from Dr. Mukherjea's book aforesaid, at P. 173. "The fact that the property is called Debutter is doubtless evidence in the plaintiffs' favour but it does not relieve them of the whole burden of proving that the land was dedicated and is inalienable"; and this statement of the law has been quoted from a decision of the Calcutta High Court in Binod Behari v. Manmatha, 21 Cal LJ 42 : (AIR 1915 Cal 789). Reference in this connection and for the same proposition may also be made to a judgment of Mookerjee, J. in Ram Kanai Ghosh v. Raja Sri Hari Narayan Singh Deo Bahadur, ((1905) 2 Cal LJ 546 at p. 552) where the great Judge has laid down that mere description of a property as debutter is not conclusive, because, whether the property be absolutely dedicated to a deity or be secular subject to a religious charge, it would in popular language be fittingly described as debutter. It is too late in the day now to contest the proposition that where there is no document, or where in a document there is nothing to show that there was a dedication, except the use of the word 'debutter' or 'Vishnuprit' or 'Sheoprit' etc. and the usufructs were apparently in the personal enjoyment of the grantee and the grantor might have contemplated that the profits of the property, after satisfying the personal wants of the grantee, would be devoted to the service of the God whom the grantee attended, such an expectation or anticipation may explain the use of the words 'debuttar', 'Sheoprit' etc., but does not suffice to constitute a valid dedication to the God (of Shama Charan Nundy v. Abhiram Goswami, (1906) 3 Cal LJ 306)). A Bench of this Court reviewing the whole mass of case law, reiterated the same principle in Khub Narain Missir v. Ramchandra Narain Dass, ( AIR 1951 Pat 340 ), and it is worthwhile to mention here that the aforesaid decision of this Court in Khub Narain's case AIR 1951 Pat 340 was upheld by the Supreme Court in Rambehari Thakur v. Ramchandra Narain Das, (Civil Appeals Nos. 4 and 5 of 1951, decided on the 19-11-1952 (SC)). 4 and 5 of 1951, decided on the 19-11-1952 (SC)). In that judgment, their Lordships of the Supreme Court held as follows :- "We find ourselves in agreement with the Courts below that the mere use of the word 'Vishnuprit' or 'Sriprit' in the documents does not at all indicate that the gifts were made to the institution as distinct from the Mahanth personally". Thus, apart from the fact that the Court of appeal below, on an appraisal of facts, did not find sufficient evidence to record a finding to the effect that there was a complete dedication to the deity, the inference drawn from the entries in the survey papers, even if susceptible to attack, cannot be said to be in any way vitiated by any error of law.” (Emphasis Supplied) 9. It is further submitted by Mr. Tiwary that there is absolutely no document in the record to show that any dedication was made by the Siri Estate of the ancestors of Lal Raghunath Sahdeo dedicated the suit property to the ancestor of the parties to the suit and the only document in support of the contention of the defendants that the property is a Debottar property is the cadastral survey and revenue survey record of right. Hence, the same cannot be the basis for arriving at the conclusion that the suit property is a Debottar property. In support of his contention, learned counsel for the appellants relied upon the judgment of Hon’ble Supreme Court of India passed in the case of State of Himachal Pradesh versus Keshav Ram and Others reported in 1997 AIR SC 2181 wherein the Hon’ble Supreme Court of India has held as under in paragraph-4:- 4. “In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the Courts below were justified in declaring plaintiff's title. As has been stated earlier the only piece of evidence on which the Courts below relied upon to decree the plaintiffs' suit is the alleged order made by the Assistant Settlement Officer directing correction of the record of right. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect to. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect to. The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the Courts below committed serious error of law in declaring plaintiff's title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances, the appeal is allowed and the judgment and decree passed in all the three forums are set aside. The plaintiffs' suit dismissed. There will be no order as to costs.” 10. Mr. Tiwary, further submits that in a case of partial dedication, the deity does not become the owner of the dedicated property but is in the possession of a charge holder in respect of the same and in such case of partial dedication, the property does not become extra commercial like a debottar property but is alienable subject to the charge and the distance according to the ordinary rules of inheritance. In support of his contention, Mr. In support of his contention, Mr. Tiwary relied upon the judgment of Hon’ble Orissa High Court passed in the case of Panchanan Dalai and Another versus Lakshmidhar Dalai and Others reported in AIR 1958 ORISSA 65 wherein the Hon’ble Orissa High Court has held as under in paragraph-17:- 17. “The law with regard to the absolute or partial character of a debottar property is now well settled. The position is that where the dedication made by a settlor in favour of an idol covers the entire beneficiary interest which he had in the property, the debottar is an absolute or complete debottar. Where however some proprietary or pecuniary right or interest in the property is either undisposed of or reserved for the settlor's family or relation, a case of partial dedication arises. In a partial dedication the deity does not become the owner of the dedicated property, but is in the position of a charge-holder in respect of the same. The charge is created to the property and there is an obligation on the holder to apply a portion of the income for the religious purposes indicated by the settlor. The property does not become extra commercium like a debottar property strictly speaking, but is alienable subject to the charge and descends according to the ordinary rules of inheritance. It can be attached and sold in execution of a decree against the holder. Whoever gets the property however takes it burdened with the charity or religious trust.” (Emphasis Supplied) 11. Hence, it is submitted by Mr. Tiwary that in the absence of any instrument of dedication, the defendants in the facts and circumstances in the case has failed to discharge the heavy onus upon them to prove that the property has been inalienably conferred upon the defendants. Hence, it is submitted by Mr. Tiwary that the learned first appellate court erred by arriving at a conclusion that the property is a Debottar property of such nature that the same is inalienable. 12. Having heard the submissions made at the Bar and after going through the evidence in the record, it is pertinent to mention here that the power of this Court for interference with the finding of facts of the first appellate court while exercising the power under Section 100 of the Code of Civil Procedure is limited. 12. Having heard the submissions made at the Bar and after going through the evidence in the record, it is pertinent to mention here that the power of this Court for interference with the finding of facts of the first appellate court while exercising the power under Section 100 of the Code of Civil Procedure is limited. Such finding of fact can be interfered with if such finding is based on no evidence or perverse as has been reiterated by the Hon’ble Supreme of India, in paragraph-10 of the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 as under:- "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied). 13. It is a settled principle of law that the genuine entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness as has been held by the Hon’ble Supreme Court of India in the case of Vishwa Vijay Bharati v. Fakhrul Hassan and others reported in AIR 1976 SC 1485 paragraph -14 of which is as follows: 14. It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. The Hon’ble Supreme court in the case of Digambar Adhar Patil v. Devram Girdhar Patil (died) and another reported in AIR 1995 SC 1728 held that entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence was also of similar view by observing as under in paragraph-5: “* * * * * * * * * * The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given by the respondent and his brother to prove the factum of partition. * * * * * * * * (Emphasis Supplied) 14. Coming to the facts of the case, in view of the principle of law as discussed above the substantial question of law framed in this appeal is answered as under:- ‘Whether in the absence of any instrument of dedication, mere use of the word Debottar in the two survey records of rights would be conclusive for deciding the nature of the property in question?’ That instrument of dedication is certainly not a sine qua non for a dedication of a property. But absence of any instrument of dedication throws a heavy onus upon the party who sets dedication of the property. Further the entry in survey record of rights creates a rebuttable presumption about the facts stated in such record of rights and the genuine entries in the revenue record ought, generally, to be accepted at their face value. The substantial question of law is answered accordingly. 15. Further the entry in survey record of rights creates a rebuttable presumption about the facts stated in such record of rights and the genuine entries in the revenue record ought, generally, to be accepted at their face value. The substantial question of law is answered accordingly. 15. So far as the facts of the case is concerned, as already referred to above, the learned first appellate court has not only relied upon the use of the word ‘Debottar’ in the two survey record of right but has elaborately discussed the other documents as well as the testimonies of the witnesses of the plaintiffs themselves including the plaintiff in paragraphs-11, 12 and 13 of the impugned judgment. Further there is no allegation about the genuineness of the entries made in the record of rights. Under such circumstances, this Court is of the considered view that this is not a fit case where this Court should interfere with the finding of the first appellate court in exercise of its power under section 100 of the Code of Civil Procedure. 16. Accordingly, this appeal being without any merit is dismissed but in the circumstances without any costs. 17. Let the lower court records be sent to the learned court below with a copy of this judgment forthwith.